Hoffman v. Glock

Gilbert, J., delivered the opinion of the Court. The appellants-cross-appellees, Martin J. Hoffman and Norma M. Hoffman, his wife, entered into an agreement with appellee-cross-appellant, Charles E. Glock t/a Glock Construction Company, whereby Glock agreed to erect a house for the Hoffmans in consideration of the payment of the sum of forty-four thousand, nine hundred dollars ($44,900.00), plus extras, to Glock by the Hoffmans. The house was to be built in accordance with a set of drawings prepared by Home Planners Inc. of Detroit, Michigan, design number 1270, as amended. Initially all went well until a dispute arose between the parties over the size of the fireplaces.

That controversy became heated and the matter reached litigation. The Hoffmans sued for specific ²⁸⁶ performance of the construction contract and also sought a monetary decree for damages allegedly suffered by them. Glock filed a counterclaim for breach of contract. The matters were heard jointly in the Circuit Court for Harford County by Judge Albert P. Close who decided both cases adversely to the respective plaintiffs.

Each, feeling singed by the decision of the trial judge, has appealed to this Court. The appellants-cross-appellees raise three contentions. They aver that Judge Close erred (1) in allowing the appellee to testify in reference to two of the appellee’s exhibits, (2) in finding that the appellants-cross-appellees breached the contract rather than the appellee and (3) in holding that the appellants-cross-appellees were not entitled to damages. Appellee-cross-appellant asserts, on the other hand, that the trial judge (4) erroneously denied the counterclaim and (5) the costs in the trial court should not have been divided between the parties.

Questions 1, 2 and 4 will be considered together. Question 3, because of our disposition of question 2, will not be considered. Issue 5 will be discussed separately hereinafter. At the trial two sets of drawings bearing the design number 1270 were admitted into evidence.

One set introduced by the Hoffmans contained no notations other than those made by the Home Planners Inc. from whom they had been purchased. The other set, under attack here, was introduced by the appellee. A vast number of changes is noted thereon. The changes have been made in pencil, red ink, blue ink and green ink.

No testimony was offered as to what significance, if any, the four different colors had. Neither set of plans was signed by the parties. Glock also offered into evidence a set of drawings known as “G-4” which he says were a simplified version, for construction purposes, of plan number 1270. Some of the changes as noted on Glock’s set of number 1270 were admitted to by the Hoffmans, but others were denied.

Glock said that all of the changes were made with the complete understanding and acquiescence of the parties. Attached to the contract for the erection of the house was a list of some thirty-six (36) items. Number 32 of that list provided: ²⁸⁷ “Any changes, requested by the Purchasers, must be in writing with payment prior to work being performed.” The items enumerated on the list are not in dispute nor as Judge Close said: “ ... is there any dispute over numerous other changes, which were not contained in the written contract or list. These other changes in original plan 1270 which were not in writing were noted on the original plan 1270, were in fact executed by [Glock], were accepted by the [Hoffmans] and were orally acknowledged by the [Hoffmans] at trial.” There was testimony from Mr. Hoffman that he “questioned” the use of trusses for the garage roof set twenty-four inches apart rather than ceiling joists sixteen inches apart as called for in the original plan 1270.

Testimony from an expert was proffered that twenty-four inches is the standard separation for trusses and a further proffer that a licensed engineer would testify that such construction was structurally sound. Mr. Hoffman admitted, in any event, that up until the time that the fireplaces were built he had no complaints concerning Glock’s work. According to Glock, and going to the crux of the problem that seemingly created this controversy, Mr. Hoffman acknowledged to Glock that he, Hoffman, had agreed to thirty-six inch fireplaces but that his wife did not like the thirty-six inch fireplaces and “he had to live with her.” Judge Close found as a fact based upon the evidence presented in the case “and the course of conduct between the parties, that the Hoffmans did orally agree to 36 inch fireplaces.” Because of Mrs. Hoffman’s dissatisfaction with the smaller fireplaces, Glock agreed that he would demolish them and construct fireplaces that were forty-eight inches wide. To do so, Glock opined, would cost fifteen hundred dollars ($1,500.00).

Glock offered to assume five hundred dollars ($500.00) of the cost if the Hoffmans paid an additional one thousand dollars ($1,000.00). The Hoffmans refused to pay. Thereafter Glock wrote the Hoffmans a ²⁸⁸ letter in which he complained about the lack of progress on the house because of the indecisiveness on the part of the Hoffmans. Glock testified that he received no answer to his letter and that although he was ready, willing and able to proceed, he was unable to do so because of the failure of the Hoffmans to make decisions and because of the disagreement over the fireplaces.

In July of 1971 the Hoffmans retained Charles F. Kraus Corporation to complete the job for approximately thirty-two thousand dollars ($32,000.00). At that point in time Glock had been paid twenty-eight thousand, six hundred four dollars and thirty-two cents ($28,604.32) on a contract price of forty-four thousand, nine hundred dollars ($44,900.00). Included in the total payments to Glock were one thousand, one hundred fourteen dollars ($1,114.00) in extras. Notwithstanding a written agreement that any change to a contract must be in writing, the parties by subsequent oral agreement and by their conduct may waive the requirements of a written contract.

Judge Smith, speaking for the Court in Taylor v. University Nat’l Bank, 263 Md. 59 , 282 A. 2d 91 (1971) said, at 63: “ . . . that the conduct of parties to a contract may be evidence of a subsequent modification of their contract. .. The Court, in Taylor , cited Freeman v. Stanbern Const. Co., 205 Md. 71 , 106 A. 2d 50 (1954), wherein it is stated, at 79: “We hold that a subsequent oral modification of a written contract may be established by a preponderance of the evidence. Achenbach v. Stoddard, 253 Pa. 338 , 98 A. 604 [(1916)]; United Steel Co. v. Casey, [ 262 F. 889, 891 (6th Cir. 1920)].

Of course, if the written contract provides that it shall not be varied except by an agreement in writing, it must appear that the parties understood that this clause was waived. However, such a clause may be waived by implication as well as by express agreement.” ²⁸⁹ See also Chas. Burton Bldrs. v. L and S Constr., 260 Md. 66 , 271 A. 2d 534 (1970) and Bartlett v. Stanchfield, 148 Mass. 394 , 19 N. E. 549 (1889). Mr. Justice Holmes, then a member of the Supreme Judicial Court of Massachusetts said in Bartlett at 395: “Attempts of parties to tie up by contract their freedom of dealing with each other are futile.

The contract is a fact to be taken into account in interpreting the subsequent conduct of the plaintiff and the defendant, no doubt. But it cannot be assumed, as matter of law, that the contract governed all that was done until it was renounced in so many words, because the parties had a right to renounce it in any way and by any mode of expression they saw fit. They could substitute a new oral contract by conduct and intimation, as well as by express words.” Whether or not the subsequent conduct of the parties amounts to a waiver is a question of fact to be decided by the trier of the fact. Bartlett v. Stanchfield, supra; Freeman v. Stanbern Const.

Co., supra. We observe that in the instant case there is no recitation in the contract that it represents the entire agreement between the parties. Furthermore, a reading of the record makes it crystalline that the parties failed to incorporate their entire agreement into the written contract. As we have noted, Mr. Hoffman testified that many changes were agreed to orally both prior to and after the written contract had been signed and that those changes did not appear in the written contract nor on the itemized list attached thereto.

All of the oral changes, according to the trial judge’s finding of fact, found “expression ... in the house itself and were accepted by the [Hoffmans].” The Hoffmans argue that design plan number 1270 was intended to be “the means for constructing the home of the Appellant.” They assert that Glock could have protected himself by the simple method of having the parties sign or initial each page of the plans. The Hoffmans contend that the contract was unambiguous, needed no parol evidence to ²⁹⁰ explain it, and that there was no room for construction by the trial court. The Hoffmans reason that “Plan 1270 meant just that — Plan 1270.” In the light of the testimony that there were agreed changes to plan 1270, both prior to and after the execution of the written agreement, the appellants’ argument is much akin to “whistling in the wind.” The changes were never reduced to writing, so that the written agreement patently could not contain the entire agreement. The dispute over what was and was not agreed to by the parties, placed the court in the position of having to determine what actually was the agreement.

Judge Close found that the Hoffmans, “by their acceptance of numerous changes which were orally requested, waived the requirement that changes be requested in writing and are estopped from trying to enforce the writing requirement as to changes which they now deny were requested.” See Taylor v. University Nat’l Bank, supra. We find no error in- the trial court’s admission into evidence of the appellee’s “plan 1270”. Appellee’s exhibit 3, styled by Glock as “G-4”, was admitted into evidence without objection. Later counsel stated, “If I recall correctly ... we had an